Essay: Bail not jail

“Bail not Jail” is the worn out proverb with respect to bail said by Justice V.R. Krishna Iyer. Be that as it may, there is substantially more to the idea of bail than this straightforward adage, Bail is a fundamental component of procedural law in the Criminal Justice framework. Basically Bail is a procedure to set free a man who will be taken into custody for further judgment or confinement by taking security for his appearance at whatever point called upon. The purpose behind the presence of idea of Bail is the basic inborn right of individual freedom which is not just the substance of the standard of law additionally a naturally ensured essential right. Moreover, the concept of bail has its own traces back to 300 BC, when the famous philosopher Plato in classical Greece, tried to create a bond for the release of his mentor Socrates. Consequently, the modern bail system in India has been brought from the evolution of the concept of bail in England during the middle ages.
History of bail in England:-
In Britain during the medieval ages, Judges used to listen to the cases periodically as there was a system of circuit Courts existed. In order to attend these courts Judges had to visit to various parts of the country to decide cases. It is only then when the words “Sessions” and “Quarter Sessions” were coined from the intervals at which these courts took place. These intervals between the sessions led the under trial prisoners to be captive under very inhumane and unhygienic conditions which resulted in outbreak of deadly diseases.
This agitated the prisoners and thus, was subsequently opposed by them. Consequently, the agitation led the Courts to define the concepts of bail on which a surety was made responsible for the release of the concerned under trial prisoner, and if the prisoner fails to appear before the court on the date of his hearing the surety had to be made liable and had to face trials. Later on this concept evolved and the system of monetary bail was introduced.
sTATUTORY EVOLUTION OF bAIL: iN eNGLAND:-
➢ In 1215, first time the provisions for granting liberal rights to the citizens were included. It made obligatory that no person can be detained without being judged by the peers or the law of the land.
➢ In 1275, the statue of Westminster was enacted which provided the definitions as to bailable and no-bailable offences and subsequently, it also divided the powers of Courts as to which court can grant bail in what offences.
➢ In 1677, the Habeas Corpus Act was added to the right of petition of 1628, which gave the right to an accused to be told the right of charges framed against him, and ultimately the right to know whether the charges are bailable.
➢ In 1689 came the “English Bill of Rights”, which provided safeguards against the judges setting bail too high for an accused.
➢ In 1976, the “Bail Act of 1976” came into force. This act defines the current bail system existing in England. It enacts the general right to bail, except as provided for under the First Schedule of the Act. While there are different grounds for refusing the right of bail. Eligibility as to obtain bail depends upon the type of offence committed .
The English administrative laws also requires that, where there is an obligation to provide reasons for a decision, the reasons must be clear and sufficient and dealing with the substantive issue in the case
Relevant Provisions in the Code of Criminal Procedure Pertaining to Regular Bail:-
The pandect for bail provision is enacted under Chapter XXXIII comprises of sections 436 to 450 of the Code of Criminal Procedure of which Sections 437 and 439 are currently under consideration. Suffice is to express that Section 438 have laid directions for grant of bail to persons apprehending arrest does requires either the presence of the applicant in Court or for his being in custody. Section 437 provides that if any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or if such person appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail in certain circumstances. For reference Sections 437 and 439, both covers the grant of regular bail in non-bailable offences are reproduced herein. Section 438 is of ignorable use to this paper because it lays the provision dealing only with the grant of anticipatory bail.
Some piercing particulars might be pinpointed, To start with, whilst Section 437(1) of the old Code implied that the accused \”brought before a Court”, the present provision postulates the accused being \”brought before a Court other than the High Court or a Court of Session\” in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh v. State , there is no provision in the Code of Criminal Procedure dealing with the production of an accused before the Court of Session or the High Court. “But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts.” The legislative intent could have been different if the legislature would have used of exclusionary or exclusive terminology while making the superior Courts of Sessions and High Court are bereft of this jurisdiction. The Code of Criminal Procedure seriously diminishes the power of the Magistrate while leaving that of the Court of Session and the High Court untouched and free. It creates the impression this is the main coherent conclusion that can be touched base at on a conjoint thought of Sections 437 and 439 of the Code of Criminal Procedure. Clearly, with a specific end goal to finish the photo so far as concerns the powers and impediments thereto of the Court of Session and the High Court, Section 439 would need to be precisely considered. Furthermore, when this is done, it will on the double be apparent that the Code of Criminal Procedure has put a ban against conceding help to an accused, (framed by the courts in the negative), on the off chance that if he is not in custody. It is not possible to find any provision in the Code of Criminal Procedure or somewhere else nor have been conveyed to ken, reducing the powers of the superior courts to entertain a plea for bail. Not to forget that since the Magistrate is not empowered to grant regular bail in the event of an accused that is alleged with an offence which is punishable with death penalty or life imprisonment, then in that case the accused can directly approach to the superior courts for relief because no court lower than the Sessions court can amplify him the aid.
Constitutional Paradigm- Article 21
“Likewise physics, law also abhors the presence of vacuum” and that vacuum in law is filled up by Article 21 of the Indian Constitution which extends and protects the right of liberty to each and every person. Article 21 ensures the legal maxim “Ubi Jus Ibi Remedium”. The Context ought to be kept in mind that the legislature has done alterations this provision including Section 437 to 439 and, along these lines, predicates on the settled standards of translation of statutes that what is not clearly apparent from their perusing is never expected to be joined into law. Some striking elements of these provisions are that whilst Section 437 considers that a man must be accused or suspect for a non-bailable offense and thusly captured or confined without warrant, Section 439 enables the Session Court or High Court to grant bail if such a man is in custody. The difference of language manifests the sublime differentiation in the two provisions and therefore there is no justification in giving the word \’custody\’ the same or closely similar meaning and content as arrest or detention. Moreover, while Section 437 severally abridges the power of the Magistrate to allow bail in connection of the commission of non-bailable offenses culpable with death or detainment for life, the two higher Courts have just the procedural prerequisite of pulling out of the Bail application to the Public Prosecutor, which necessity is likewise ignorable if circumstances so request. The administrations managing the power of the Magistrate from one viewpoint and the two predominant Courts are positively and deliberately not indistinguishable, but rather crucially and radically divergent. To be sure, the main complicity that can be considered is the problem of \’Committal of cases to the Court of Session\’ as a result of a conceivable rest made by the Code of Criminal Procedure. But in respect of the above conclusion it can be ignored as to safeguard the individual liberty.
Meaning of Custody:-
The terms ‘custody’, ‘detention’ and ‘arrest’ have not been defined in the code of the Criminal Procedure. The black’s Law Dictionary defines “custody” as “the care and control of a thing or person for inspection, preservation, or security.” The Hon’ble Supreme Court of India view on the meaning of this term “custody” cannot be ignored, the Court said in the case of Punam Arya v. State of Jharkhand that a person is not only in “custody” when the police arrests him or produce him before the Magistrate for remands or other custody but a person who surrenders before the court and submits himself to its direction is also be said to be “in custody”, within the meaning of Section 439 of CrPc, as the petitioner had already surrendered and furnished bail bonds in compliance of the order of the anticipatory bail and was under control of the court she had moved application for regular bail and for that purpose she can be stated to be “in custody” within the meaning of Section 439, CrPc. The sessions Judge should not have thus rejected the petitioners bail application holding the same not maintainable on the ground that the petitioner was not in custody in physically at the time of filing the bail application. Therefore, a perusal of the dictionaries and the Supreme Court’s view, thus, discloses that the concept that is created is the controlling of a person\’s liberty in the course of a criminal investigation, or curtailing in a substantial or significant manner a person\’s freedom of action. Subsequently, in the light of the above discussion made, it is not necessary for a man be necessarily in physical authority to be liberated on bail.
The Conundrum of Cognizance, Committal & Bail:-
Section 190 contemplates the cognizance of an offence by a Magistrate in any of the following four circumstances: i) upon receiving a complaint of facts; or ii) upon a police report of such facts; or iii) upon information received from any person other than a police officer, or iv)Upon the Magistrate\’s own knowledge. From there on, Section 193 prohibits the Court of Sessions from taking cognizance of any offence as court of original Jurisdiction until and unless the case is committed to it by the magistrate. Chapter XVI makes it amply clear that a substantial period may inevitably intervene between a Magistrate taking cognizance of an offence triable by Sessions and its committal to the Court of Sessions. Section 204 casts the duty on a Magistrate to issue process; Section 205 empowers him to dispense with personal attendance of accused; Section 206 permits Special summons in cases of petty offence; Sections 207 and 208 obligate the Magistrate to furnish to the accused, free of cost, copies of sundry documents mentioned therein; and, thereafter, under Section 209 to commit the case to Sessions. Just passable confinement, as a general legitimate standard the accused is the captured for a period of 24 hours. Thereafter, the accused would be entitled to seek enlargement on bail. In connection with serious offences Section 167 Code of Criminal Procedure describes that an accused may be incarcerated either in police or judicial custody for a maximum of 90 days if the Charge Sheet has not been filed.
An accused for long time remain bereft of his freedom during such conditions therefore, law must enable him to seek bail for this period. Since serious limitations have been put on Magistrate’s power to grant bail the accused person must be able to move to a court which is meaningfully empowered to grant him relief. Therefore, the constitution along these lines requires that a realistic, positive and facilitative elucidation be given to the Code of Criminal Procedure particularly as to the activity of its original jurisdiction by the Sessions Court. The author is incapable to locate any provision in the Code of Criminal Procedure which prohibits an accused from moving the Court of Session for such a relief except Section 193 which also only prohibits it from taking cognizance of an offence as a Court of original jurisdiction. This provision does not ban the Sessions Court to adjudicate a plea for bail. Thus, It appears that before committal of case to Sessions Court, Section 439 can be invoked for the purpose of pleading for bail even if he is not in custody (the physical custody) because the Magistrate is not empowered do so.
Conclusion:-
The Code of Criminal Procedure, 1973 extremely abridges the power of the Magistrate while granting regular bail to a man who is accused for an offense punishable with both of life detainment or capital punishment. At, the same time the court for this situation held that the power to give bail is free with regards to Sessions court or the High Court experiencing the conjoint perusing of Section 437 and 439 of the code. Since, the Magistrate is not empowered to grant regular bail to a person, the higher Court such as Court of Sessions and High Court can jump to his recue even without the committal of case before it. The legislative meaning of the provisions should not be read in a rigid way but be given a lenient view when it comes to safeguard individual liberty of a person. Additionally it has not been found any provision in the Code of Criminal Procedure or somewhere else, nor have any been conveyed to ken, diminishing the power of both of the Higher Courts. Besides, where social justice is signature tune of our constitution, therefore, depending upon the guideline of freedom as ordered in Article 21 of the Indian Constitution which protects the privilege of each person to have practiced his Right to Liberty, the Court referred to liberty as one of the directing reasons while allowing bail in such cases. Subsequently, in advancement of the above dialog it is presumed that the Magistrate is totally limited from conceding bail to a man charged with an offense either punishable of death sentence or detainment of life, a higher Court, for example, Court of Session, ought not be crippled from considering a bail application particularly keeping in context that its powers are relatively free under Section 439 of the Code of Criminal Procedure. This way, not only the judicial system will be able to secure justice and maintain faith of the common people in it, but also it will help in saving the precious public time and extraneous litigation procedure.